Defendant's Reply in Support of Motion To Dismiss First Amended Complaint

Case 2:17-cv-04885-DMG-AS Document 24 Filed 10/18/17 Page 1 of 34 Page ID #:1265
1 BRAD D. BRIAN (State Bar No. 79001)

brad.brian@mto.com
2 HAILYN J. CHEN (State Bar No. 237436)
hailyn.chen@mto.com
3 JORDAN D. SEGALL (State Bar No. 281102)
jordan.segall@mto.com
4 MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, 50th Floor
5 Los Angeles, California 90071
Telephone: (213) 683-9100
6
JONATHAN H. BLAVIN (State Bar No. 230269)
7 jonathan.blavin@mto.com
JOSHUA PATASHNIK (State Bar No. 295120)
8 josh.patashnik@mto.com
MUNGER, TOLLES & OLSON LLP
9 560 Mission Street, 27th Floor
San Francisco, California 94105
10 Telephone: (415) 512-4000
11 Attorneys for Defendants AIRBNB, INC.
and AIRBNB PAYMENTS, INC.
12
13 UNITED STATES DISTRICT COURT
14 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

15 LA PARK LA BREA A LLC, LA Case No.: 2:17-cv-4885 DMG (ASx)
16 PARK LA BREA B LLC, LA PARK DEFENDANTS REPLY IN
LA BREA C LLC, and AIMCO
17 VENEZIA, LLC SUPPORT OF MOTION TO
DISMISS FIRST AMENDED
18 COMPLAINT
19 Plaintiffs,
[Filed concurrently with Declaration of
20 Jonathan H. Blavin and Request for
v.
21 Judicial Notice]
22 AIRBNB INC. and AIRBNB Judge: Hon. Dolly M. Gee

PAYMENTS, INC., Date: November 3, 2017
23 Time: 9:30 a.m.
24 Ctrm: 8C
Defendants.
25
26
27
28
DEFENDANTS REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT

1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ..........................................................................................1
4 II. ARGUMENT..................................................................................................1
5 A. Aimcos Tortious Interference Claims Fail ...........................................1
6 1. The FACs Allegations Regarding the Existence of
Underlying Breaches Are Insufficient as a Matter of Law...........1
7
(a) Proximate Causation Must Be Sufficiently Alleged ..........3
8
(b) Aimcos Substantial Factor Argument Is Incorrect ........3
9
(c) The FACs Allegations Do Not Establish Causation .........4
10
4. Aimco Does Not Allege Independently Wrongful Acts ..............9
11
5. Aimco Does Not Plead that Airbnb Owed it a Duty of
12 Care ............................................................................................9
13 B. Aimco Fails To State a Claim for Violation of the UCL .....................10
14 1. Aimco Does Not Allege It Is a Consumer or Competitor ..........10
15 2. Aimco Does Not Allege Airbnb Engaged in Unlawful
Acts ..........................................................................................11
16
3. Aimco Does Not Allege Airbnb Engaged in Unfair Acts ..........11
17
C. Aimco Fails To State a Claim for Unjust Enrichment .........................11
18
D. Aimco Fails To State a Claim for Aiding and Abetting Trespass ........12
19
1. Airbnb Guests at Aimcos Properties Are Not Trespassers .......12
20
2. Aimcos Tenants Are Not Trespassers ......................................14
21
3. Aimco Fails To Allege Airbnb Aided or Abetted Trespass .......14
22
E. Aimco Fails To State a Claim For Nuisance .......................................15
23
1. Airbnb Owes No Duty to Aimco ...............................................15
24
2. Aimco Does Not Allege Proximate Causation ..........................17
25
3. Aimco Fails To Allege a Substantial Property Invasion ............18
26
F. All of Aimcos Claims Are Completely Barred by the CDA ...............18
27
1. Airbnb Is Not an Information Content Provider ........................19
28
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1 TABLE OF CONTENTS
(continued)
2 Page
3 2. Aimcos Claims Treat Airbnb as a Publisher or Speaker ...........21
4 III. CONCLUSION ............................................................................................25
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-ii-
1 TABLE OF AUTHORITIES
2 Page(s)
3 FEDERAL CASES
4 Airbnb, Inc. v. City & County of San Francisco,
5 217 F. Supp. 3d 1066 (N.D. Cal. 2016) .................................................. 21, 24, 25
6 Aliya Med. Fin., LLC v. Nickell,

2015 WL 11072180 (C.D. Cal. Sept. 25, 2015)....................................................8
7
8 Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................................................6
9
Astiana v. Hain Celestial Grp., Inc.,
10
783 F.3d 753 (2015)........................................................................................... 12
11
Bank of N.Y. v. Fremont Gen. Corp.,
12 523 F.3d 902 (9th Cir. 2008) ................................................................................4
13
Barnes v. Yahoo!, Inc.,
14 570 F.3d 1096 (9th Cir. 2009) ............................................................................ 19
15 Batzel v. Smith,
16 333 F.3d 1018 (9th Cir. 2003) ...................................................................... 18, 22
17 Bauer v. Interpublic Grp. of Cos., Inc.,
255 F. Supp. 2d 1086 (N.D. Cal. 2003) ................................................................5
18
19 Black v. Google Inc.,
2010 WL 3222147 (N.D. Cal. Aug. 13, 2010) ................................................... 21
20
21 Cal. Expanded Metal Prod. Co. v. ClarkWestern Dietrich Bldg. Sys. LLC,
2014 WL 5475214 (C.D. Cal. Oct. 29, 2014) .......................................................9
22
Casas v. Victorias Secret Stores, LLC,
23 2015 WL 13446989 (C.D. Cal. Apr. 9, 2015) .................................................... 11
24
Circle Click Media LLC v. Regus Management Group LLC,
25 2015 WL 6638929 (N.D. Cal. Oct. 30, 2015)..................................................... 10
26 City of Chicago v. StubHub!, Inc.,
27 624 F.3d 363 (7th Cir. 2010) .............................................................................. 23
28
-iii-
(continued)
2 Page
3 Cohen v. Facebook, Inc.,
___ F. Supp. 3d ___, 2017 WL 2192621 (E.D.N.Y. May 18, 2017) ................... 24
4
5 Evans v. Hewlett-Packard Co.,
2013 WL 5594717 (N.D. Cal. Oct. 10, 2013)..................................................... 23
6
Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC,
7
521 F.3d 1157 (9th Cir. 2008) ............................................................................ 19
8
Fiji Water Co. v. Fiji Mineral Water USA, LLC,
9 2010 WL 11515469 (C.D. Cal. Nov. 10, 2010) ....................................................8
10
Gidding v. Zurich Am. Ins. Co.,
11 2015 WL 6871990 (N.D. Cal. Nov. 9, 2015) .......................................................8
12 Goddard v. Google,
13 640 F. Supp. 2d 1393 (N.D. Cal. 2009) .............................................................. 20
14 Grace v. Apple Inc.,
2017 WL 3232464 (N.D. Cal. July 28, 2017)..................................................... 11
15
16 Green v. Am. Online,
318 F.3d 465 (3d Cir. 2003) ............................................................................... 24
17
Herrick v. Grindr, LLC,
18
2017 WL 744605 (S.D.N.Y. Feb. 24, 2017) ................................................. 21, 22
19
Hillman v. Maretta,
20 133 S. Ct. 1943 (2013) ....................................................................................... 18
21
Inman v. Technicolor USA, Inc.,
22 2011 WL 5829024 (W.D. Pa. Nov. 18, 2011) .................................................... 23
23 IV Sols., Inc. v. Conn. Gen. Life Ins. Co.,
24 2015 WL 12843822 (C.D. Cal. Jan. 29, 2015) ................................................... 10
25 Jones v. Dirty World Ent. Recordings LLC,
26 755 F.3d 398 (6th Cir. 2014) ........................................................................ 19, 23
27 Kimzey v. Yelp! Inc.,

836 F.3d 1263 (9th Cir. 2016) ...................................................................... 19, 25
28
-iv-
(continued)
2 Page
3 Klee v. United States,
53 F.2d 58 (9th Cir. 1931).................................................................................. 13
4
5 Myers v. Encore Credit,
2012 WL 4511033 (E.D. Cal. Sept. 30, 2012) .................................................... 12
6
National Rural Telecommunications Cooperative v. DIRECTV, Inc.,
7
319 F. Supp. 2d 1059 (C.D. Cal. 2003) .............................................................. 10
8
Opperman v. Path, Inc.,
9 84 F. Supp. 3d 962, 987 (N.D. Cal. 2015) .......................................................... 23
10
Pirozzi v. Apple Inc.,
11 913 F. Supp. 2d 840 (N.D. Cal. 2012) ................................................................ 19
12 Rex Investment Co. v. S.M.E., Inc.,
13 2016 WL 4507463 (S.D. Cal. Aug. 29, 2016) .................................................... 13
14 Selden v. Airbnb, Inc.,
2016 WL 6476934 (D.D.C. Nov. 1, 2016) ......................................................... 20
15
16 Sierra Natl Ins. Holdings, Inc. v. Altus Fin., S.A.,
2001 WL 1343855 (C.D. Cal. June 20, 2001) ......................................................9
17
Stereoscope, LLC v. U.S. Bank Nat. Assn,
18
2015 WL 570099 (C.D. Cal. Feb. 11, 2015) ........................................................5
19
Stereoscope, LLC v. U.S. Bank Natl Assn,
20 675 F. Appx 725 (9th Cir. 2017) ..................................................................... 3, 5
21
VasoNova Inc v. Grunwald,
22 2012 WL 4119970 (N.D. Cal. Sept. 18, 2012) ................................................. 3, 5
23 Zeran v. Am. Online, Inc.,
24 129 F.3d 327 (4th Cir. 1997) ........................................................................ 21, 25
25 STATE CASES
26 Augustine v. Trucco,
27 124 Cal. App. 2d 229 (1954) ................................................................................3
28
-v-
(continued)
2 Page
3 Birke v. Oakwood Worldwide,
169 Cal. App. 4th 1540 (2009) ..................................................................... 15, 17
4
5 Casey v. U.S. Bank Natl Assn,
127 Cal. App. 4th 1139 (2005) ..................................................................... 11, 15
6
Cassinos v. Union Oil Co.,
7
14 Cal. App. 4th 1770 (1993) ............................................................................. 14
8
Coldwell Banker Residential Brokerage Co. v. Superior Court,
9 117 Cal. App. 4th 158 (2004) ............................................................................. 15
10
Delgado v. Trax Bar & Grill,
11 36 Cal. 4th 224 (2005) ....................................................................................... 16
12 Della Penna v. Toyota Motor Sales, U.S.A., Inc.,
13 11 Cal. 4th 376 (1995) .........................................................................................9
14 Donaher v. Vannini,
2017 WL 4518378 (Me. Super. Ct. Aug. 18, 2017).................................. 1, 22, 23
15
16 Donahue Schriber Realty Grp., Inc. v. Nu Creation Outreach,
232 Cal. App. 4th 1171 (2014) ........................................................................... 12
17
Dryden v. Tri-Valley Growers,
18
65 Cal. App. 3d 990 (1977) .......................................................................... 3, 5, 6
19
Durell v. Sharp Healthcare,
20 183 Cal. App. 4th 1350 (2010) ........................................................................... 12
21
Fragomeno v. Ins. Co. of the W.,
22 207 Cal. App. 3d 822 (1989) .............................................................................. 14
23 Gamache v. Airbnb, Inc.,
24 2017 WL 3431651 (Cal. Ct. App. Aug. 10, 2017) ............................ 10, 15, 17, 18
25 Hahn v. Diaz-Barba,
26 194 Cal. App. 4th 1177 (2011) .............................................................................1
27 Hill v. StubHub, Inc.,

727 S.E.2d 550 (N.C. App. 2012) ...................................................................... 23
28
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(continued)
2 Page
3 Hous. Rights. Cmte. of S.F. v. HomeAway, Inc.,
2017 WL 2730028 (Cal. Ct. App. June 26, 2017) .................................... 5, 16, 17
4
5 Howard v. Superior Court,
2 Cal. App. 4th 745 (1992)................................................................................. 15
6
JAire Corp. v. Gregory,
7
24 Cal.3d 799 (1979). ..........................................................................................9
8
Kasky v. Nike, Inc.,
9 27 Cal. 4th 939 (2007) ....................................................................................... 10
10
Kendall v. Ernest Pestana, Inc.,
11 40 Cal. 3d 488 (1985) ..........................................................................................2
12 Korea Supply Co. v. Lockheed Martin Corp.,
13 29 Cal. 4th 1134 (2003) ................................................................................... 6, 9
14 Lake Alamnor Assoc. L.P. v. HuffmanBroadway Group, Inc.,
178 Cal. App. 4th 1194 (2009) .............................................................................9
15
16 Licht v. Gallatin,
84 Cal. App. 240 (1927).......................................................................................2
17
Linear Tech. Corp. v. Applied Materials, Inc.,
18
152 Cal. App. 4th 115 (2007) ............................................................................. 10
19
M&M Media Grp., Inc. v. Regency Outdoor Advert., Inc.,
20 2013 WL 5533189 (Cal. Ct. App. Oct. 8, 2013) ................................................. 14
21
Martinez v. Pacific Bell,
22 225 Cal. App. 3d 1557 (1990) ...................................................................... 16, 17
23 McBride v. Boughton,
24 123 Cal. App. 4th 379 (2004) ............................................................................. 12
25 NPS LLC v. StubHub, Inc.,
26 2009 WL 995483 (Mass. Super. Ct. Jan. 26, 2009) ............................................ 23
27 Orange Cty. Water Dist. v. Alcoa Glob. Fasteners, Inc.,

12 Cal. App. 5th 252 (2017).................................................................................4
28
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(continued)
2 Page
3 People v. Klopstock,
24 Cal. 2d 897 (1944) .............................................................................. 8, 13, 14
4
5 Rutherford v. Owens-Ill., Inc.,
16 Cal. 4th 953 (1997) .........................................................................................4
6
San Diego Gas & Elec. Co. v. Superior Court,
7
13 Cal. 4th 893 (1996) ....................................................................................... 18
8
Schulz v. Neovi Data Corp.,
9 152 Cal. App. 4th 86 (2007)............................................................................... 15
10
Siewert v. Casey,
11 80 So. 3d 1114 (Fla. Dist. Ct. App. 2012) ............................................................8
12 Stoner v. eBay Inc.,
13 2000 WL 1705637 (Cal. Super. Ct. Nov. 1, 2000) ....................................... 21, 22
14 Taylor v. Odell,
50 Cal. App. 2d 115 (1942) ..................................................................................8
15
16 Upasani v. State Farm Gen. Ins. Co.,
227 Cal. App. 4th 509 (2014) ............................................................................. 15
17
Viner v. Sweet,
18
30 Cal. 4th 1232 (2003) .......................................................................................4
19
Xerox Corp. v. Listmark Computer Sys.,
20 142 N.J. Super. 232 (App. Div. 1976) ................................................................ 13
21
Yee Chuck v. Board of Trustees of Stanford Jr. University,
22 179 Cal. App. 2d 405 (1960) ........................................................................ 13, 14
23
24
25
26
27
28
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1 I. INTRODUCTION
2 As Aimcos Opposition confirms, all of its claims are based on a fundamentally
3 flawed theorythat Airbnb should be the arbiter and enforcer of Aimcos purported
4 blanket no-sublet ban of people it views as undesirable at its luxury apartment
5 properties. Aimco ignores the critical point that, with respect to any particular tenant,
6 Airbnb is not in a position to know whether Aimco may have consented (expressly or
7 impliedly) to a sublet, or whether any refusal to consent was reasonable and valid.
8 Aimcos responsetake our word for itis precisely the problem. The law does
9 not permit Aimco to foist on Airbnb the responsibilities of enforcing its lease terms
10 and adjudicating its tenants rightsparticularly where, remarkably, Aimco views its
11 own tenants engaged in homesharing as trespassers subject to immediate eviction.
12 Aimcos Opposition does nothing to remedy the multiple independent defects in
13 Aimcos complaint. Aimco does not, and cannot, establish the basic elements of its
14 claimsincluding proximate causation and intentand all of its claims are barred in
15 their entirety by the CDA. Under Aimcos theory, tens of thousands of property
16 owners around the country could force Airbnb to review and monitor listings to see if
17 they violate the terms of each of their individual leases. That burden would directly
18 contravene Congresss goal in enacting the CDA of promoting the development of e-
19 commerce and the Internet. And indeed, since Airbnb filed its motion, a court reached
20 precisely that conclusion, holding that the CDA barred a near-identical effort to have
21 Airbnb enforce a landlords no-sublet clause. Donaher v. Vannini, 2017 WL 4518378
22 (Me. Super. Ct. Aug. 18, 2017). The Court should dismiss the FAC with prejudice.
23 II. ARGUMENT
24 A. Aimcos Tortious Interference Claims Fail
1. The FACs Allegations Regarding the Existence of
25 Underlying Breaches Are Insufficient as a Matter of Law
26 Tortious-interference claims require specific allegations that a contract was in
27 fact breached as a result of the defendants conduct. See, e.g., Hahn v. Diaz-Barba,
28 194 Cal. App. 4th 1177, 1196 (2011). Aimcos FAC, however, does not allege any
-1-
1 concrete example of an instance in which a particular tenant breached his or her lease.
2 Instead, Aimcos allegations are riddled with factual holes. (Mot. 56.) For instance,
3 the FAC alleges that tenants are not authorized to sublet on Airbnb (FAC 52)
4 notwithstanding the fact that the so-called anti-subleasing clause permits subleasing
5 with Aimcos consentbut is conspicuously silent about whether tenants have sought
6 permission to use Airbnb and how Aimco responded. Such facts are necessary to
7 determine both whether consent was given, and if not, whether any denial of consent
8 was reasonable and thus legally valid. (Mot. 6); see Kendall v. Ernest Pestana, Inc.,
9 40 Cal. 3d 488, 501 (1985). Aimco argues that Plaintiffs allege that their tenants
10 who are Hosts do not seek Plaintiffs permission, (Opp. 5), but the cited paragraph
11 does not state that; it alleges only that a single tenant was discovered using Airbnb.
12 (FAC 40.) Further, Aimco wholly ignores that under California law, where, as here,
13 there is a clause in a lease that it shall not be assigned without the previous consent
14 of the lessor, the lessor has only the option to forfeit the lease, but the assignment
15 itself is not void, and a subtenancy, in the absence of any showing to the contrary,
16 will be presumed to have been created with [the lessors] consent and to be valid.
17 Licht v. Gallatin, 84 Cal. App. 240, 245 (1927) (emphases added); (Mot. 6).
18 These pleading deficiencies go to the heart of Aimcos claims. In opposition,
19 Aimco complains that Airbnb is asking the court to assume that there were no lease
20 breaches. (Opp. 5.) Not so: Airbnb is only demanding that Aimco carry its legal
21 burden, as a plaintiff asserting tortious interference claims, to plead nonspeculative
22 facts establishing that particular terms of particular lease agreements as applied to
23 particular tenants were in fact breached. This Aimco has failed to do. The Court
24 should not credit Aimcos assertion that Airbnb knows that all hosts who rent
25 Plaintiffs apartments are not authorized to sublet their apartments when its own
26 complaint fails to allege facts showing as much.1 (FAC 52 (emphasis added).)
27
1
28 Aimco also argues that its interference with prospective economic advantage claims
do not require actual breach, but only that Airbnb disrupted Aimcos leases by
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1 2. Aimco Fails to Allege Proximate Causation

2 Aimcos opposition confirms that the facts alleged in the FAC, even if true, do
3 not show that Airbnb proximately caused any injury to Aimco.
4 (a) Proximate Causation Must Be Sufficiently Alleged
5 Aimco first asserts that proximate causation is a question of fact to be
6 decided by the jury. (Opp. 6, 78.) That blanket statement is simply wrong. Courts
7 routinely dismiss claims on the pleadings for failure to allege facts showing proximate
8 causationparticularly in federal court, following Twombly/Iqbal. See, e.g.,
9 Stereoscope, LLC v. U.S. Bank Natl Assn, 675 F. Appx 725, 726 (9th Cir. 2017)
10 (affirming dismissal of interference claim for not adequately alleg[ing] causation);
11 VasoNova Inc v. Grunwald, 2012 WL 4119970, at *4 (N.D. Cal. Sept. 18, 2012).
12 That is especially true for an interference claim, where [i]t has been repeatedly
13 held that a plaintiff, seeking to hold one liable for unjustifiably inducing another to
14 breach a contract, must allege that the contract would otherwise have been
15 performed. Dryden v. Tri-Valley Growers, 65 Cal. App. 3d 990, 997 (1977)
16 (emphasis added). As Aimco concedes, Dryden was decided on the pleadings. (Opp.
17 8.) And numerous other cases have dismissed interference claims where the plaintiff
18 has failed to allege facts showing that the defendant was the moving cause of [the]
19 breach. VasoNova, 2012 WL 4119970, at *4; Stereoscope, 675 F. Appx at 726;
20 Augustine v. Trucco, 124 Cal. App. 2d 229, 24647 (1954) (affirming dismissal where
21 there was no allegation that [party] would otherwise have performed any contract).
22 (b) Aimcos Substantial Factor Argument Is Incorrect
23 Implicitly acknowledging the causation obstacles it faces, Aimco argues that
24 Californias substantial factor test, a broader rule of causality, applies. (Opp. 7.)
25 But as the California Supreme Court has held, the substantial factor test applies the
26 traditional but for test in most casesa defendants conduct is not a substantial
27
making Plaintiffs performance more costly. (Opp. 4.) Aimco does not allege,
28 however, that homesharing made Aimcos performance more costly, but rather that it
spent money trying to stop tenants from electing to breach their leases.
-3-
1 factor in bringing about harm to another if the harm would have been sustained even
2 if the actor had not engaged in that conduct. Viner v. Sweet, 30 Cal. 4th 1232,
3 123940 (2003) (emphasis in original). Indeed, the very cases upon which Aimco
4 relies demonstrate that the substantial factor test generally produces the same results
5 as does the but for rule. See Rutherford v. Owens-Ill., Inc., 16 Cal. 4th 953, 969
6 (1997); Bank of N.Y. v. Fremont Gen. Corp., 523 F.3d 902, 910 (9th Cir. 2008)
7 (same; applying but for test). The substantial factor test has an exception to
8 but for causation where there are concurrent independent forces, each of which
9 would have been sufficient by itself to bring about the harm. Viner, 30 Cal. 4th at
10 1240 (emphases added); Orange Cty. Water Dist. v. Alcoa Glob. Fasteners, Inc., 12
11 Cal. App. 5th 252, 342 (2017) (same). But this is not such a case: Aimco does not,
12 and cannot, allege that Airbnbs conduct was one of multiple independent forces
13 that was sufficient by itself to bring about the alleged harm. Rather, Aimco
14 identifies Airbnb as the sole alleged proximate cause of its harm. (FAC 8687.)
15 (c) The FACs Allegations Do Not Establish Causation
16 Aimcos allegations do not remotely suggest that, absent Airbnbs conduct, its
17 tenants would not have engaged in homesharing; if anything, they show the opposite.
18 Aimco argues that Airbnb provides a range of services and guarantees to its
19 users, and that listings booked through Airbnb have caused substantial harm to it.
20 (Opp. 7.) Even if that is true, it simply means that Aimcos tenants chose to avail
21 themselves of those serviceswhich are offered on equal terms to all Airbnb hosts
22 in the course of allegedly breaching their leases. Indeed, as Aimco alleges, its tenants
23 already were seeking to lease or sublease their space, which is why they voluntarily
24 choose to create an Internet listing on Airbnb in the first place (as one of several
25 competing hosting platform websites). (Id. 12.) As the California Court of Appeal
26 recently held in affirming dismissal of a similar claim against HomeAway (another
27 homesharing platform) for facilitating allegedly unlawful rentals, facilitating a
28 rental would potentially embrace all sorts of entitiesfrom banks, cleaning services,
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1 utilities, and so onbut these surely are not liable. Hous. Rights. Cmte. of S.F. v.
2 HomeAway, Inc., 2017 WL 2730028, at *8 (Cal. Ct. App. June 26, 2017).2
3 As shown in Airbnbs Motion, courts consistently have dismissed interference
4 claims where, as here, the allegedly breaching party acted on its own initiative, prior
5 to any alleged interference or involvement by the defendant. (Mot. 78 (citing, e.g.,
6 Dryden, 65 Cal. App. 3d at 997; Bauer v. Interpublic Grp. of Cos., Inc., 255 F. Supp.
7 2d 1086, 1095 (N.D. Cal. 2003)). Contrary to Aimcos assertions, several cases,
8 including from this District, have so held and done so on the pleadings.
9 For example, in Stereoscope, LLC v. U.S. Bank Nat. Assn, 2015 WL 570099
10 (C.D. Cal. Feb. 11, 2015), affd, 675 F. Appx 725 (9th Cir. 2017), the plaintiffs and
11 a movie production company had a joint venture agreement. The plaintiffs sent a
12 Notice of Claims letter to U.S. Bank informing [it] of a dispute between the
13 parties over escrow funds the plaintiffs had deposited at the bank. Id. at *1, 5. The
14 plaintiffs claimed that U.S. Bank tortiously interfered with the parties contract by
15 refus[ing] to freeze the funds after receipt of the Notice and releas[ing] the
16 funds to the production company. Id. at *2, 5. The court dismissed the claim on
17 the pleadings, holding that Defendants actions were not a but for cause of the
18 breach where Plaintiffs state in their Complaint that the [parties] relationship
19 had begun to deteriorate before they attempted to take back the escrow money from
20 the U.S. Bank account. Id. at *5 (emphasis added). The Ninth Circuit affirmed,
21 holding that [e]ven assuming that [plaintiffs] adequately alleged that it had valid
22 contracts with third parties, and that US Bank had knowledge of these contracts at
23 the time of its alleged interference, [plaintiffs] did not adequately allege causation.
24 675 F. Appx at 726; see also VasoNova, 2012 WL 4119970, at *4 (dismissing
25
2
Aimco repeatedly alleges that Airbnb facilitates short-term rental transactions.
26 (FAC 11); id. 75, 85, 96, 10104, 108, 120, 127 (same). Perhaps recognizing that
27 facilitating short and long-term accommodationswhich all hosting platforms do
is not enough to establish causation, Aimco now argues that Airbnb does more than
28 simply facilitate listings. (Opp. 7.) The range of services Airbnb provides,
however, are simply how it allegedly facilitate[s] listings and bookings. (FAC 15.)
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1 claim on pleadings where complaint alleged party abandoned contract prior to

2 [defendants] involvement). Similarly here, Aimco is seeking to foist duties on
3 Airbnb relating to a dispute between it and its tenants (including by giving notice
4 to Airbnb), but the alleged breach arose from Aimcos tenants own desire to seek[]
5 to lease or sublease their space (FAC 12)which necessarily predated and was
6 the cause of such tenants choosing to engage in homesharing and list on Airbnb, or
7 any number of other platforms, in the first place.
8 Recognizing that these allegations foreclose any inference of causation, Aimco
9 argues that Airbnb cannot point to any conclusive proof in the Complaint that
10 Plaintiffs tenants decided to breach before Defendants created the market for short-
11 term rentals. (Opp. 8 (emphasis added).) This argument is groundless and
12 contradicted by Aimcos own allegations. At the outset, it is Aimcos burden, not
13 Airbnbs, to allege facts giving rise to a plausible inference that tenants would not
14 have breached their leases but for Airbnbs conduct. Ashcroft v. Iqbal, 556 U.S. 662,
15 678 (2009). But moreover, nowhere does the FAC allege that Airbnb uniquely
16 created the market for short-term rentals, and of course, it did not. The short-term
17 rental market existed long before Airbnb came into existence. And apart from Airbnb,
18 as Aimco itself alleges, Aimcos tenants can list their units on one or more numerous
19 other hosting platforms, such as VRBO.com and homeaway.com (FAC 27).
20 Indeed, Aimco identifies these platforms in the very anti-assignment clause that is the
21 focus of this case. (Id.) Because by Aimcos own admission, its tenants could have
22 listed their units on multiple other hosting platforms without Airbnbs involvement,
23 Airbnb was not the moving cause of any breach. Dryden, 65 Cal. App. 3d at 997.
24 3. Aimco Fails to Allege Intent
25 Airbnb and Aimco appear to agree on the legal standard governing the intent
26 element of Aimcos interference claims: Aimco must allege either that Airbnb actually
27 desired to interfere with Aimcos leases, or that Airbnb knew that the interference
28 was certain or substantially certain to occur as a result of its action. Korea Supply
-6-
1 Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1154 (2003). Aimco does not
2 attempt to argue that it has alleged an actual desire to interfere with Aimcos leases,
3 only that its complaint satisfies the substantially certain standard. (Opp. 9.)
4 Aimco rests its argument entirely on the multiple communications Aimco allegedly
5 had with Airbnb in which Aimco supposedly provided a copy of their standard lease
6 and a list of apartments with offending listings. (Id. at 910.) For at least two
7 reasons, even if all of Aimcos factual allegations and its characterization of these
8 communications are assumed to be true, this does not show that Airbnb was
9 substantially certain its conduct was facilitating breaches of tenants leases.
10 First, as Aimco alleges, it never provided Airbnb with any definitive list of
11 tenants who were breaching their leases; it provided only a list of Airbnb listings that
12 Plaintiffs suspected were in violation of their leases. (FAC 49 (emphasis
13 added).) Aimco acknowledges that it is difficult to connect an Airbnb rental listing
14 to a specific apartment unit to determine whether the listing is in violation of a lease.
15 (Id. 44.) Airbnb can hardly be charged with knowledge of any breaches when
16 Aimco alleges it was not itself certain which (if any) tenants breached their leases.
17 Second, and more fundamentally, Aimco ignores the key point that, with
18 respect to any particular listing, Airbnb has no way of knowing whether an Aimco
19 employee consented to a tenants request to engage in subletting or whether, as a legal
20 matter, any refusal to consent was reasonable and valid. Aimco complains that this is
21 a post-hoc rationalization by [Airbnbs] lawyers. (Opp. 10.) That is both irrelevant
22 and false: as this case makes clear, Airbnb is not in a position to know the details of
23 individual landlords and tenants factual circumstances, which is necessary to
24 determine whether a breach has occurred or whether a refusal to consent to a sublet is
25 reasonable. Airbnb cannot be the arbiter and enforcer of landlords lease agreements.
26 Here, as discussed above, Aimco alleges that [e]very tenants lease includes a
27 blanket anti-subleasing clause purporting to make null and void [a]ny purported
28 assignment or sublet made without Aimcos prior written consent. (FAC 27.)
-7-
1 That means one of two things: either Aimco does sometimes consent to sublet
2 requests, in which case Airbnb cannot be charged with knowledge of which individual
3 tenants received or did not receive such consent; or Aimco never consents to sublet
4 requests, in which case its blanket refusal is very likely unreasonable and thus legally
5 invalid. See Siewert v. Casey, 80 So. 3d 1114, 1116 (Fla. Dist. Ct. App. 2012).3 In
6 either case, the facts alleged foreclose any argument that Airbnb knew it was certain
7 or substantially certain that particular hosts were in fact violating their leases.
8 Compounding the uncertainty, under California law, even where there is a no-sublet
9 provision, a sublet is legally valid unless and until the landlord specifically objects to
10 the tenant that the sublet is invalid and seeks to forfeit the lease. See supra at 2;
11 Taylor v. Odell, 50 Cal. App. 2d 115, 121 (1942) (In the event of an assignment of
12 rights under a lease contrary to a covenant forbidding such assignment or subletting,
13 such assignment is valid until the lessor forfeit[s] the lease); People v. Klopstock,
14 24 Cal. 2d 897, 901 (1944) (same). Airbnb has no way of knowing whether Aimco
15 has specifically objected to and forfeited any lease agreements with any particular
16 tenantswhich, indeed, Aimco has alleged that it has been unable to do. (FAC 44.)
17 Aimco argues that [o]nly the trier of fact can decide whether its allegations
18 suffice to give rise to an inference of intent. (Opp. 10.) As with causation, that is
19 simply wrong. The case Aimco cites does not support that blanket proposition; it says
20 only that, on the particular facts there, the plaintiff had plausibly alleged that the
21 interference was intentional. Aliya Med. Fin., LLC v. Nickell, 2015 WL 11072180,
22 at *14 (C.D. Cal. Sept. 25, 2015). Courts routinely dismiss interference claims on the
23 pleadings for failure to allege intent. See, e.g., Gidding v. Zurich Am. Ins. Co., 2015
24 WL 6871990, at *7 (N.D. Cal. Nov. 9, 2015) (plaintiff has not alleged that any
25 Defendant acted with the requisite intent to intentionally breach); Fiji Water Co. v.
26 Fiji Mineral Water USA, LLC, 2010 WL 11515469, at *3 (C.D. Cal. Nov. 10, 2010).
27 3
Aimco asserts (Opp. 6 n.1) that its lease prohibit[s] only Airbnb short-term
28 rentals, not all sub-leasing. That is false. The lease states: Resident shall not sublet
the Apartment this lease for any length of time. (FAC 27 (emphasis added).)
-8-
1 4. Aimco Does Not Allege Independently Wrongful Acts

2 To state a claim for intentional interference with prospective economic
3 advantage, a plaintiff must plead that the defendant engaged in conduct that was
4 wrongful by some legal measure other than the fact of interference itself. Della
5 Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376, 393 (1995). Aimco
6 argues that it has satisfied this standard by pleading its various tort causes of action.
7 (Opp. 1011.) As Airbnbs Motion explains, however, each of those claims fails as a
8 matter of law, and Aimco does not identify any other determinable legal standard
9 under which Airbnbs conduct is wrongful. Korea Supply, 29 Cal. 4th at 1159.
10 5. Aimco Does Not Plead that Airbnb Owed it a Duty of Care
11 Aimcos negligent interference claim separately fails because Aimco has not
12 alleged that Airbnb owes it a duty of care. (Mot. 10.) Recognition of a duty to
13 prevent purely economic loss to third parties is the exception, not the rule, in
14 negligence law. Lake Alamnor Assoc. L.P. v. HuffmanBroadway Group, Inc., 178
15 Cal. App. 4th 1194, 1205 (2009). Aimcos argument that Airbnb owed it such a duty
16 relies entirely upon JAire Corp. v. Gregory, 24 Cal.3d 799, 805 (1979). (Opp. 11.)
17 In JAire, a contractor negligently delayed renovations to a restaurant; the court held
18 that the contractor owed a duty of care to the restaurant. Id. at 804. Courts, including
19 in this District, consistently have held that JAire applies only where the party has
20 dependence on the others conduct to carry on [its] own respective business. Sierra
21 Natl Ins. Holdings, Inc. v. Altus Fin., S.A., 2001 WL 1343855, at *17 (C.D. Cal. June
22 20, 2001); Cal. Expanded Metal Prod. Co. v. ClarkWestern Dietrich Bldg. Sys. LLC,
23 2014 WL 5475214, at *3 (C.D. Cal. Oct. 29, 2014) (no JAire duty where plaintiffs
24 ability to conduct businesses did not depend upon the defendants conduct). Here,
25 Aimco does not allege that it depended on Airbnb to conduct its own business.
26 Aimcos claim that it could impose a duty of care on Airbnb simply by bringing the
27 alleged subletting to Airbnbs attention would expand the theoretical scope of this
28 tort far beyond its sensible boundaries. Sierra Natl, 2001 WL 1343855, at *17.
-9-
1 B. Aimco Fails To State a Claim for Violation of the UCL

2 1. Aimco Does Not Allege It Is a Consumer or Competitor
3 The UCL was enacted to protect both consumers and competitors by
4 promoting fair competition in commercial markets for goods and services. Kasky v.
5 Nike, Inc., 27 Cal. 4th 939, 949 (2007). For that reason, a UCL claim will not lie
6 where the alleged victims are neither competitors nor powerless, unwary consumers
7 but rather a sophisticated corporation. Linear Tech. Corp. v. Applied Materials, Inc.,
8 152 Cal. App. 4th 115, 135 (2007). Aimco cites two cases (Opp. 12), but neither is
9 persuasive. The first, Circle Click Media LLC v. Regus Management Group LLC,
10 2015 WL 6638929, at *4 (N.D. Cal. Oct. 30, 2015), held that the Linear Tech. rule did
11 not apply to the plaintiff because it was unsophisticated and comprised of only two
12 individuals. Aimco is a publicly traded real estate company with a billion dollars in
13 annual revenues. The second, National Rural Telecommunications Cooperative v.
14 DIRECTV, Inc., 319 F. Supp. 2d 1059, 1077 (C.D. Cal. 2003), predated Linear Tech.
15 by four years. Later cases consistently have held that Linear Tech forecloses relief
16 in non-competitor business-to-business disputes like this one. IV Sols., Inc. v.
17 Conn. Gen. Life Ins. Co., 2015 WL 12843822, at *1718 (C.D. Cal. Jan. 29, 2015).
18 Acknowledging that it is not a competitor, Aimco attempts to portray itself as a
19 potential consumer of Airbnbs Friendly Buildings Program (Opp. 12). But
20 Aimco nowhere alleges that it is a consumer, nor that it ever participated in this
21 program, and in any case, its claimed injury bears no relation to the program. Aimco
22 also argues that it brings suit on behalf of thousands of its residents, (id. at 13),
23 but they stand to recover nothing from this suit, no matter the outcome. Further, in
24 Gamache v. Airbnb, Inc., 2017 WL 3431651, at *4 (Cal. Ct. App. Aug. 10, 2017), the
25 court dismissed, for lack of standing and causation, a UCL claim brought against
26 Airbnb by residents of an apartment building who alleged they had to pay for repairs
27 and maintenance costs attributable to short-term rentals, holding that any damage
28 allegedly from short-term renters was not caused by Airbnb: the direct cause was the
-10-
1 short-term renters or Plaintiffs landlord. If tenants of an apartment building lack

2 UCL standing, there is little question that the owner of the building lacks standing as
3 well. Indeed, Aimco seeks to recover nothing more than the costs and damages that
4 a billion-dollar company has incurred in enforcing its own leases. (Opp. 13.)
5 2. Aimco Does Not Allege Airbnb Engaged in Unlawful Acts
6 Because Aimco fails to state a claim for any of its common law claims, Aimco
7 fails to plead an unlawful business practice. Aimco further argues that Airbnb is
8 liable under the UCL for aiding and abetting purported violations of the L.A.
9 Municipal Code. (Opp. 15.) But as Aimco concedes, any alleged code violations
10 which Aimco does not even attempt to establishwere caused by its tenants, not
11 Airbnb, and it does not allege (nor could it) the required elements of such a claim
12 that Airbnb gave substantial assistance with the specific intent of facilitating a
13 code violation. Casey v. U.S. Bank Natl Assn, 127 Cal. App. 4th 1139, 1146 (2005).
14 3. Aimco Does Not Allege Airbnb Engaged in Unfair Acts
15 Aimcos Opposition next argues that Airbnb is guilty of unfair acts. Of the
16 various tests California courts have articulated for such practices, Aimco focuses on
17 whether the business practice is immoral, unethical, oppressive, unscrupulous or
18 substantially injurious to consumers. Grace v. Apple Inc., 2017 WL 3232464, at *14
19 (N.D. Cal. July 28, 2017). (Opp. 15.) But this test applies only to cases in which the
20 injured plaintiff is a consumer. (Mot. 1213); Casas v. Victorias Secret Stores, LLC,
21 2015 WL 13446989, at *4 n.7 (C.D. Cal. Apr. 9, 2015) (the Court struggles to see
22 how Plaintiffs, as non-consumer[s], can possibly satisfy one of the consumer
23 unfairness tests). Here, the plaintiff asserting injury is a wealthy landlord. Further,
24 Aimco does not allege that Airbnbs practices are injurious to consumers of Airbnb.
25 Id. (emphasis added). To the contrary, Aimcos own FAC indicates that consumers
26 Airbnb guests and hostsbenefit greatly from Airbnb. (Mot. 14).
27 C. Aimco Fails To State a Claim for Unjust Enrichment
28 Aimco argues that the Ninth Circuit has squarely rejected Airbnbs argument
-11-
1 that California law does not recognize an independent cause of action for unjust
2 enrichment. (Opp. 17 (citing Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 (9th
3 Cir. 2015)).) But Astiana itself affirmed that in California, there is not a standalone
4 cause of action for unjust enrichment. 783 F.3d at 762. Aimco is correct that
5 California courts will, in appropriate circumstances, construe an erroneously pleaded
6 unjust enrichment claim as a quasi-contract claim seeking restitution.4 Id. But
7 this is not one of those circumstances, which exist only where the defendant obtained
8 a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. Durell v.
9 Sharp Healthcare, 183 Cal. App. 4th 1350, 1370 (2010) (emphasis added). Neither
10 Aimcos FAC nor its Opposition contains any facts or argument suggesting that
11 Airbnb used fraud, duress, or conversion to extract any alleged benefit from it.
12 Further, as Aimco alleges, money Airbnb earns from homesharing comes from
13 Airbnbs hosts and guests, not Aimco. (FAC 14.) Aimco has no right to seek
14 restitution of that money. See, e.g., Myers v. Encore Credit, 2012 WL 4511033, at *8
15 (E.D. Cal. Sept. 30, 2012) (dismissing quasi-contract unjust enrichment claim where
16 plaintiff sought to claim payments defendants received from third parties).
17 D. Aimco Fails To State a Claim for Aiding and Abetting Trespass
18 Aimco concedes that Airbnb itself is not guilty of unauthorized entry onto
19 Aimcos land. Donahue Schriber Realty Grp., Inc. v. Nu Creation Outreach, 232 Cal.
20 App. 4th 1171, 117778 (2014). Aimco instead argues that Airbnb is liable for aiding
21 and abetting trespass. (Opp. 1819.) Aimco fails to establish that it has sufficiently
22 alleged either (1) the existence of any trespass or (2) that Airbnb abetted any trespass.
23 1. Airbnb Guests at Aimcos Properties Are Not Trespassers
24 Aimco first argues that guests who use Airbnb to sublet at Aimcos properties
25 4
Aimcos suggestion that Airbnb ran afoul of [its] duty of candor to the Court (Opp.
17) is frivolous. Aimco accuses Airbnb of misleading the Court by cit[ing] to pre-
26 Astiana cases, id., but Astiana did not change the law; California courts construed
27 unjust enrichment claims as restitutionary claims in quasi-contract long before
Astiana. See, e.g., McBride v. Boughton, 123 Cal. App. 4th 379, 387 (2004) (noting
28 more than a decade before Astiana, that [u]njust enrichment is not a cause of action
but construing unjust enrichment claim as attempt to plead quasi-contract theory).
-12-
1 are trespassers. That is not the law. Even where the alleged subletter obtains
2 possession of premises without the consent of the owner, he shall be deemed a
3 tenant by sufferance; he only is considered a trespasser if the owner or the lessee
4 made any demand upon him to vacate the premises and he refused. Klee v. United
5 States, 53 F.2d 58, 59 (9th Cir. 1931). Indeed, as discussed, under California law, a
6 sublet remains valid unless and until the landlord declares a forfeiture of the lease.
7 Supra at 2, 8. As courts have held following California law on this point, given that a
8 sublease is valid until the landlord declare[s] a forfeiture and dispossess its
9 tenant and the tenants undertenant, it is clear that a sublettor is not a trespasser
10 and is rightfully in possession of the property. Xerox Corp. v. Listmark Computer
11 Sys., 142 N.J. Super. 232, 238 (App. Div. 1976) (citing Klopstock, 24 Cal. 2d 897).
12 The authorities Aimco cites confirm this point. In Rex Investment Co. v.
13 S.M.E., Inc., 2016 WL 4507463, at *4 (S.D. Cal. Aug. 29, 2016), the court held that
14 an unconsented sublease was valid until the lessor declared the lease void,
15 notwithstanding a lease term barring assignments without the landlords written
16 consent: [U]nder California law, a restriction as to the condition of assignment in a
17 lease is a personal covenant for the benefit of the lessor and until he elects to take
18 advantage of the breach as authorized by law, the assignment remains a valid and
19 binding conveyance[.] Id. (quoting Klopstock, 24 Cal. 2d at 901). Rex guts
20 Aimcos claim that Airbnb guests are trespassers.5 Because an unauthorized sublease
21 is valid until a landlord takes action to void the lease, then a fortiori an unauthorized
22 sublessee is not a trespasser unless and until the landlord voids the lease.
23 The other case Aimco cites also undermines rather than supports its position. In
24 Yee Chuck v. Board of Trustees of Stanford Jr. University, 179 Cal. App. 2d 405, 410
25
5
Aimco argues that even if Airbnb guests are not trespassers until Aimco takes action
26 to enforce its lease or instructs them to leave, it sufficiently alleges that Aimco has
27 done so. (Opp. 19.) But the FAC is devoid of any allegation that a guest has refused
to leave when instructed. In fact, Aimco alleges that Airbnbs customer service has
28 called to complain that Airbnb guests have been denied access, suggesting that
Aimcos efforts to exclude guests have been effective. (FAC 56 (emphasis added).)
-13-
1 11 (1960), the court held that Stanford, the property owner, had trespassed by entering
2 land held by a tenant without permission, since a landlords rights are subordinate to
3 those of a valid tenant. The snippet Aimco citesthat a possessor of land remains a
4 trespasser against those having superior rightsin fact stands for the rule that a
5 landlords rights are subordinate to those of a lessee. Id. (A lease gives the lessee
6 the right to occupy a parcel of land to the exclusion of the grantor (landlord).).
7 2. Aimcos Tenants Are Not Trespassers
8 Aimco next makes the remarkable argument that its own tenants become
9 trespassers when they engage in short-term subletting. (Opp. 19.) Aimcos
10 argument has been squarely rejected by the California Supreme Court, which has held
11 that when a sublease is made without the written consent of the lessor there is no
12 ipso facto termination of the lease by reason of the lessees failure to obtain the
13 lessors written consent to assignment, though the lessor may elect to void the lease
14 and sue for breach. Klopstock, 24 Cal. 2d at 901.6 If Aimcos theory were correct,
15 any tenant who breached a lease agreementwhether by failing to pay rent on time,
16 keeping an unauthorized pet, or painting the walls a disallowed colorwould
17 automatically become a trespasser. That is not the law. See Fragomeno v. Ins. Co. of
18 the W., 207 Cal. App. 3d 822, 83031 (1989) (when the breach of a lease provision
19 occur[s], a landlords right to recover has its inception in a contractual arrangement
20 between the parties, not in trespass).7 Even assuming arguendo that Aimcos tenants
21 breach their leases through subletting, they certainly do not become trespassers.
22 3. Aimco Fails To Allege Airbnb Aided or Abetted Trespass
23 Even if Aimco could allege that trespasses are occurring on its properties,
24
6
25 Cassinos v. Union Oil Co., 14 Cal. App. 4th 1770 (1993) (see Opp. 19) is inapposite.
That case had nothing to do with subletting; it involved the injection of wastewater
26 from mining operations into the property owners reserved mineral estate. Id. at 1776.
7
27 Aimco cites M&M Media Grp., Inc. v. Regency Outdoor Advert., Inc., 2013 WL
5533189 (Cal. Ct. App. Oct. 8, 2013), but that case involved a so-called holdover
28 tenant. Such a tenant is deemed a trespasser precisely because no contract any longer
governs the landlord-tenant relationship. Fragomeno, 207 Cal. App. 3d at 83031.
-14-
1 Aimco cannot hold Airbnb liable for third-party trespasses absent a showing that
2 Airbnb gave substantial assistance or encouragement to alleged trespassers with the
3 specific intent of facilitating a trespass. Casey, 127 Cal. App. 4th at 1144, 1146.
4 Aimco argues that it alleges intent by pleading that Airbnb knew about the allegedly
5 unauthorized subletting but continued to operate its platform. (Opp. 20.) But
6 Aimcos own cited authority holds that [m]ere knowledge that [a tort] was going to
7 be committed and failure to prevent it do not constitute aiding and abetting. Upasani
8 v. State Farm Gen. Ins. Co., 227 Cal. App. 4th 509, 518 (2014). Rather, to be liable
9 on an aiding-and-abetting theory, a defendant must reach a conscious decision to
10 participate in tortious activity for the purpose of assisting another in performing a
11 wrongful act. Howard v. Superior Court, 2 Cal. App. 4th 745, 74849 (1992)
12 (emphasis added). Aimco does notand cannotallege that Airbnb operated its
13 platform for the purpose of assisting trespass. Schulz v. Neovi Data Corp., 152 Cal.
14 App. 4th 86, 97 (2007) (dismissing aiding-and-abetting claims against PayPal where it
15 knew site was illegal lottery but agreed to let it use its payment systems). At any rate,
16 as shown (supra at 78), Aimco has not adequately alleged that Airbnb knew that any
17 tenants were in fact violating their leases, and thus, under its theory, trespassing.
18 E. Aimco Fails To State a Claim For Nuisance
19 1. Airbnb Owes No Duty to Aimco
20 Aimco first argues that it does not have to allege that Airbnb owed it a duty of
21 care to state a nuisance claim based on intentional conduct. (Opp. 20.) With respect
22 to a claim, like the one here, that seeks to hold a defendant liable for nuisances caused
23 by others, Aimco is simply wrong. See Birke v. Oakwood Worldwide, 169 Cal. App.
24 4th 1540, 1552 (2009) (a plaintiff must establish the defendant had a duty to take
25 positive action to prevent or abate the nuisance); Coldwell Banker Residential
26 Brokerage Co. v. Superior Court, 117 Cal. App. 4th 158, 16364 (2004) (same).
27 Recognizing that it is obligated to allege the existence of a duty, Aimco also
28 argues that it has satisfied that obligation because Aimco was foreseeably
-15-
1 endangered by Airbnbs conduct. (Opp. 20.) Foreseeability is insufficient here,

2 however, because the alleged nuisances were caused by third parties, not Airbnb, and
3 there is no duty to act to protect others from the conduct of third parties. Delgado v.
4 Trax Bar & Grill, 36 Cal. 4th 224, 235 (2005). Aimco argues that there are multiple
5 exceptions to this rule, but does not say which purportedly applies to Airbnb. (Opp.
6 20.) In fact, there are only two exceptions, and neither applies here. First, a defendant
7 may owe an affirmative duty to protect another from the conduct of third parties if he
8 or she has a special relationship with the other person. Delgado, 36 Cal. 4th at 235.
9 Not even Aimco argues that it is in a special relationship with Airbnb. The second
10 exception is the negligent undertaking doctrine, under which a volunteer who
11 undertakes to provide protective services to another assumes a duty to exercise due
12 care under certain conditions. Id. at 24849. That exception has no application here.
13 Aimco fails to distinguish the cases Airbnb cites holding, in identical or closely
14 analogous circumstances, that service providers have no duty to prevent nuisances
15 created by third-party customers. Aimco does not even make a perfunctory effort to
16 distinguish HomeAway, 2017 WL 2730028, at *11, which rejected identical nuisance
17 claims against another homesharing platform on the ground that the plaintiff had not
18 alleged any facts imposing a duty on HomeAway to take some affirmative action to
19 control the conduct of short-term renters. As for Martinez v. Pacific Bell, 225 Cal.
20 App. 3d 1557 (1990), Aimco wrongly argues that case recognized that a duty may
21 arise where the tortious conduct of third parties is foreseeable and the defendant can
22 control or prevent that conduct. (Opp. 21.) In fact, Martinez held that Pacific Bell, a
23 company that provided pay phones on land it neither owned nor controlled, owed no
24 duty of care to the victims of criminals attracted to the phones, even though the
25 tortious conduct of the third parties might have been foreseeable to the company.
26 225 Cal. App. 3d at 1564. That holding is squarely on point here. Aimco argues that
27 it is not asking Airbnb to control the behavior of Airbnb Guests, but rather to stop
28 renting Plaintiffs apartments altogether so that no Guest shows up there. (Opp. 21.)
-16-
1 But the Martinez plaintiff made an identical demand that Pacific Bell remove [its]
2 telephone booths so that criminals would stop showing up to use them, which the
3 court squarely rejected. 225 Cal. App. at 1560.8
4 2. Aimco Does Not Allege Proximate Causation
5 Nuisance liability extends to damage which is proximately or legally caused
6 by the defendants conduct, not to damage suffered as a proximate result of the
7 independent intervening acts of others. Id. at 1565. In the last six months alone, the
8 California Court of Appeal has twice held, on the pleadings, that a homesharing
9 platform is not the proximate cause of nuisances allegedly caused by guests who use
10 the platform to book short-term accommodations. See Gamache, 2017 WL 3431651,
11 at *2; HomeAway, 2017 WL 2730028, at *11.
12 Aimco cites no contrary authority. Instead, Aimco argues the cases are
13 distinguishable because they involved nuisances caused by the short-term renters, not
14 by the booking services companies. (Opp. 22.) Of course, the same is true here: the
15 nuisances Aimco seeks to allege, such as loud parties and late-night disturbances (see
16 FAC 3942), were caused by guests themselves, not Airbnb. The Gamache and
17 HomeAway plaintiffs made the exact same argument Aimco makes here: that Airbnb
18 facilitated short-term rentals that caused nuisances. Gamache, 2017 WL 3431651, at
19 *2; see also HomeAway, 2017 WL 2730028, at *10. Aware that Gamache and
20 HomeAway cannot be distinguished, Aimco resorts to denigrating the opinions as
21 work product of intermediate courts and arguing that both misapply California
22 law. (Opp. 22.) Both Gamache and HomeAway, however, correctly identified the
23 rule that proximate causation requires the defendants conduct to be a substantial
24 factor and correctly held that merely operating a hosting platform, without more,
25 does not make a company liable for nuisances created by its users, absent some
26 allegation that the company operated its online platform in a manner that encouraged
27 8
Aimcos citation of Birke, 169 Cal. App. 4th at 1552, on this point is inapposite
28 because it involved a claim by a tenant against her landlord. (Opp. 21.) Landlords
have a duty to their tenants to maintain their premises in safe conditions. Id. at 1552.
-17-
1 the nuisance activity specifically. Gamache, 2017 WL 3431651, at *2.

2 3. Aimco Fails To Allege a Substantial Property Invasion
3 Aimcos principal argument that it has suffered a substantial invasion of its
4 use and enjoyment of its land is that hundreds of subleases allegedly have occurred.
5 (Opp. 23.) Aimcos objection to homesharing, however, does not render the mere
6 existence of homesharing a nuisance injury. Aimco must allege substantial actual
7 damage caused by a real and appreciable invasion of its property interests. San
8 Diego Gas & Elec. Co. v. Superior Court, 13 Cal. 4th 893, 938 (1996). The actual
9 allegations of damage at Aimco properties are de minimis: one late-night knock on
10 the wrong door; one loud party; and one physical altercation. (FAC 3942.)
11 F. All of Aimcos Claims Are Completely Barred by the CDA
12 Apart from each of these defects, the FAC should be dismissed for a separate
13 reason as well: all of Aimcos claims are completely preempted by the CDA.
14 Aimcos cursory discussion of the CDA fails to rebut this key point: its theory
15 of liability inherently depends on Airbnbs role as a publisher of listings. Aimco
16 demanded that Airbnb take down certain listings; when Airbnb declined to do so,
17 Aimco sued to achieve that same result. (See FAC 4851.) That is precisely the
18 sort of claim the CDA precludes. Indeed, Aimco recently conceded at the hearing of a
19 parallel action pending in Florida that Aimco cant force [Airbnb] to take down their
20 listings under the federal Communication Decency Act. (Blavin Decl., Ex. A, at
21 7:2225.) Aimcos belated effort now to muddy the water by purporting to focus on
22 other, ancillary services Airbnb provides cannot change that reality. At a minimum,
23 Aimcos effort to hold Airbnb liable stands as an obstacle to the accomplishment and
24 execution of the full purposes and objectives of Congress in enacting the CDA,
25 Hillman v. Maretta, 133 S. Ct. 1943, 1950 (2013), including Congresss goal of
26 promot[ing] the development of e-commerce, Batzel v. Smith, 333 F.3d 1018, 1027
27 (9th Cir. 2003). The CDA thus preempts Aimcos claims.
28 At the outset, Aimco makes two points that need not detain this Court long.
-18-
1 First, Aimco argues that the CDA does not provide a general immunity against all
2 claims derived from third-party content, nor does it create a lawless no-mans-land
3 on the Internet. (Opp. 23.) That is true, but irrelevant. Airbnb does not claim that it
4 is immune from any lawsuit Aimco or another plaintiff might conceivably bring
5 against itonly that this particular lawsuit falls squarely within the bounds of the
6 CDA. Second, Aimco suggests that CDA immunity is inappropriate at this stage of
7 the case. (Id.) But courts routinely dismiss cases on the pleadings under the CDA.
8 See, e.g., Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016); Barnes v. Yahoo!,
9 Inc., 570 F.3d 1096, 1099 (9th Cir. 2009). Indeed, courts should apply CDA
10 immunity at an early stage, as it protect[s] websites not merely from ultimate
11 liability, but from having to fight costly and protracted legal battles. Fair Hous.
12 Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1164 (9th
13 Cir. 2008) (en banc). Here, the facts alleged in the FAC compel that outcome.9
14 1. Airbnb Is Not an Information Content Provider
15 Aimco argues in passing that Airbnb is an information content provider
16 because its conduct includes more than posting listings. (Opp. 24.) This argument
17 ignores everything the Ninth Circuit and other courts have said about what it means to
18 be an information content provider. It is irrelevant that Airbnb offers a variety of
19 services beyond mere publicationthat is true of most, if not all, interactive computer
20 services. The relevant question is not whether Airbnb offers services that augment[]
21 content generally, but whether it materially contribute[s] to [the] alleged
22 unlawfulness of the content, Roommates, 521 F.3d at 116768that is, whether
23 Airbnb is responsible for what makes the displayed content allegedly unlawful.
24 Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 410 (6th Cir. 2014); see
25
9
Aimco cites Pirozzi v. Apple Inc., 913 F. Supp. 2d 840, 84849 (N.D. Cal. 2012), as
26 an example of a case in which the court determined a CDA defense on the pleadings
27 was premature. (Opp. 23.) But the plaintiff there alleged Apple itself had made
false representations that misled her about the nature and integrity of Apples
28 products. 913 F. Supp. 2d at 849. As the court noted, if true, that set of facts would
defeat CDA immunity, since liability would not arise from third-party content.
-19-
1 Goddard v. Google, 640 F. Supp. 2d 1393, 119899 (N.D. Cal. 2009) (site contributes
2 materially to unlawful content only where it require[s] users to create such content).
3 Here, what makes the listings on Airbnbs platform allegedly tortious is that
4 they advertise listings that Aimco asserts are in violation of its tenants leases. But
5 Airbnb is not responsible for that element of any listing, as the FAC makes clear. As
6 Aimco alleges, its tenants are the ones who decide whether and on what terms to list
7 their properties, and also decide what information to include, such as home type,
8 room type, number of guests the rental will accommodate, location, description, and
9 so on. (FAC 12.) Indeed, only such hosts are in a position to know whether their
10 leases contain anti-subletting clauses, whether Aimco has consented to a particular
11 sublet, or whether any refusal to consent is reasonable and valid.
12 Plaintiffs allege no facts remotely suggesting that Airbnb even encourages, let
13 alone requires, users to list their homes in violation of their leases. Just the opposite:
14 as Aimco alleges, Airbnbs Terms of Service require that hosts warrant that their
15 listings will not breach any agreements with third parties. (Id. 53.)10 Plaintiffs cite
16 paragraphs 1220, 23, and 5456 of the FAC (Opp. 24), but these paragraphs say
17 nothing about Airbnbs involvement in hosts listing properties in violation of their
18 leases. They contain allegations regarding the general operation of Airbnbs platform
19 (FAC 1214), discuss ancillary functions and services Airbnb provides, such as
20 photography, messaging, payment processing, pricing advice, tax collection, and
21 insurance (id. 1520), allege that Airbnb is ostensibly aware of Aimcos concerns
22 (id. 23), and allege that Airbnbs search function includes an autocomplete option
23 that suggests certain search terms in response to user inputs (id. 5456).
24 These allegations, even if true, are immaterial for CDA immunity purposes.
25 The question is not whether Airbnb offers numerous services to its users (which it
26 10
Aimco argues in passing that these disclaimers are in fine print and not likely to
27 be read, (Opp. 16), but as courts have held in enforcing Airbnbs terms, Airbnb
adequately place[s] parties on notice of Airbnbs Terms of Service, and the
28 placement of its terms are clearly legible, appropriately sized, and unobscured.
Selden v. Airbnb, Inc., 2016 WL 6476934, at *5 (D.D.C. Nov. 1, 2016).
-20-
1 does), nor whether Airbnb allegedly has knowledge of allegedly unlawful third-party
2 listingssuch knowledge is irrelevant under the CDA, since Congress has specifically
3 chosen to preclude notice-based liability. Zeran v. Am. Online, Inc., 129 F.3d 327,
4 333 (4th Cir. 1997); see Black v. Google Inc., 2010 WL 3222147, at *3 (N.D. Cal.
5 Aug. 13, 2010), affd, 457 F. Appx 622 (9th Cir. 2011) (several courts have held that
6 immunity is not vitiated because a defendant fails to take action despite notice).
7 Rather, the question is whether Airbnb is responsible for what makes listings
8 allegedly unlawful: the decision to list a property in violation of the terms of a lease.
9 And that decision lies entirely with hosts. Cf. Herrick v. Grindr, LLC, 2017 WL
10 744605, at *4 (S.D.N.Y. Feb. 24, 2017) (dating app immune under CDA for
11 harassment stemming from fake user profiles because to the extent Grindr has
12 contributed to the harassment by providing functionality such as geo-location
13 assistance, that is not what makes the false profiles tortious (emphasis added)).
14 2. Aimcos Claims Treat Airbnb as a Publisher or Speaker
15 Aimcos argument that its lawsuit would not treat Airbnb as a publisher or
16 speaker of third-party listings is equally unpersuasive. Aimco fails to meaningfully
17 address the cases Airbnb cited in which courts have explained why the CDA protects
18 sites that process payments and transactions in connection with third-party listings.
19 And the one case upon which Aimco reliesthe district courts ruling in San
20 Franciscois wholly distinguishable, and was wrongly decided in any event.
21 As Airbnb explained (Mot. 2324), the overwhelming majority of courts to
22 have confronted the issue have held that CDA immunity extends to claims against
23 online marketplaces arising from the publication of third-party listings advertising
24 goods and services, including transactions relating to those listings. For instance, in
25 Stoner v. eBay Inc.a case Airbnb discussed at length (id.) that Aimco fails even to
26 mentionthe court rejected the very argument Aimco makes here: that the plaintiffs
27 suit did not seek to hold eBay responsible for the publication of information provided
28 by others, but for eBays own participation in selling contraband musical recordings,
-21-
1 including its payment services, for which additional fees are charged. 2000 WL
2 1705637, at *23 (Cal. Super. Ct. Nov. 1, 2000). As the court observed in holding the
3 claims barred by the CDA, the plaintiffs theory of liability was boundless: if eBay
4 could be sued for the sale of unauthorized recordings (or, here, for transactions that
5 allegedly violate leases), there was no reason why liability would not extend to the
6 sale of all other goods or services that violated some other legal duty. Id. at *4.
7 The burden that such an obligation would place on a service such as eBay likely
8 would force it to cease, or at least significantly restrict, publication of third-party
9 listings. Id.; (see also Mot. 24). And the relevant burden here involves not just
10 Aimco, but potentially tens of thousands of property owners nationwide who may
11 argue that Airbnb should monitor its site for listings that purportedly violate their
12 lease agreements (indeed, Aimco seeks this very result with its nationwide class
13 allegations). That would directly contravene Congresss goal in enacting the CDA of
14 promot[ing] the development of e-commerce. Batzel, 333 F.3d at 1027.
15 A recent case involving Airbnb, released after Airbnb filed its motion to
16 dismiss, confirms the point. See Donaher, 2017 WL 4518378. In Donaher, the
17 plaintiffs, like Aimco, were landlords who sued Airbnb for allegedly facilitating a
18 tenants violation of their leases prohibition on subleasing. Id. at *1. The plaintiffs
19 similarly alleged that they notified Airbnb that the tenants did not have a legal right
20 or plaintiffs consent to sublet the property. Id. The court dismissed the complaint,
21 holding that [a]t the heart of plaintiffs claims against Airbnb is their allegation that
22 Airbnb failed to take down [the tenants] post offering plaintiffs house for rent on
23 Airbnbs website, conduct protected by the CDA. Id. at *2. The court specifically
24 rejected the argumentidentical to Aimcosthat Airbnbs payment processing
25 business would not be entitled to any protection under the CDA. Id. at *3. The
26 court held that the processing or receipt of payments associated with posts does not
27 strip a provider or user of an interactive computer service of [CDA] immunity. Id.
28 Aimco repeatedly describes Airbnb as a broker of transactions between third
-22-
1 parties as opposed to a publisher of listings. (Opp. 25.) This word selection does
2 not alter the outcome. In Hill v. StubHub, Inc., 727 S.E.2d 550 (N.C. App. 2012), the
3 court held that although StubHub functioned as a broker, effectively putting a buyer
4 and a seller into contact with each other in order to facilitate a sale at a price
5 established by the seller, it was nonetheless entitled to claim the benefit of CDA
6 immunity, which operates to bar Plaintiffs individual claim challenging a ticket
7 sale. Id. at 563; see also id. at 562 (handling the mechanics required to complete the
8 transaction for third-party listings did not displace CDA immunity). Aimco says
9 nothing about the substance of the Hill courts reasoning, upon which Donaher also
10 relied, see 2017 WL 4518378, at *3. Aimco argues that Hill is contrary to persuasive
11 authority, but the two cases it cites (Opp. 25 n.10) are inapposite, as they did not
12 address liability for processing transactions.11 Aimco also contends that several other
13 cases are readily distinguishable (id. & n.11), but does not (and cannot) dispute that
14 these cases held online marketplaces immune under the CDA notwithstanding their
15 processing of transactions in connection with third-party listings. (Mot. 24 & n.8.)12
16 In short, Aimcos argument that CDA immunity extends only to pure bulletin-board
17 sites like Craigslist is untenable. Congress enacted the CDA in 1996, but courts have
18 rejected the notion that it protects only the Internet as it then existed.
19 11
Aimco cites City of Chicago v. StubHub!, Inc., 624 F.3d 363, 366 (7th Cir. 2010),
20 but that case dealt with the entirely separate issue of whether StubHub was
responsible for collecting and remitting local taxes, which Airbnb does. (FAC 6.)
21 Aimco also cites NPS LLC v. StubHub, Inc., 2009 WL 995483, at *13 (Mass. Super.
Ct. Jan. 26, 2009), but the court there determined the plaintiff had adequately alleged
22 that StubHub was an information content provider because it allegedly
23 encourag[ed] users to engage in illegal ticket scalping. Id. at *11. That theory of
liability is wrong and has been subsequently rejected by courts, see Jones, 755 F.3d at
24 414 (rejecting encouragement test of immunity under the CDA); Opperman v. Path,
Inc., 84 F. Supp. 3d 962, 987 (N.D. Cal. 2015) (same), but more to the point here, that
25 prong of the CDA is irrelevant to the publisher or speaker analysis.
12
See Inman v. Technicolor USA, Inc., 2011 WL 5829024, at *6 (W.D. Pa. Nov. 18,
26 2011) (eBay immune as publisher notwithstanding plaintiffs argument that he sought
27 to hold eBay responsible for its conduct, specifically, business transactions
(emphasis added)); Evans v. Hewlett-Packard Co., 2013 WL 5594717, at *4 (N.D.
28 Cal. Oct. 10, 2013) (online app store was a publisher or speaker notwithstanding
plaintiffs attempt to hold it liable for receiv[ing] commission from selling the app).
-23-
1 Aimcos argument in opposition to CDA immunity hinges entirely on a single

2 case: Airbnb, Inc. v. City & County of San Francisco, 217 F. Supp. 3d 1066 (N.D. Cal.
3 2016). But San Francisco is both distinguishable and, at any rate, incorrect.
4 First, San Francisco involved a municipal ordinance that expressly targeted
5 only the provision of payment and transaction processing services for unregistered
6 listings, not listings themselves. Id. at 107273. In Aimcos private lawsuit here, it is
7 clear that Aimcos real beef is with the listings, not the payment and transaction
8 processing. There is a reason Aimco has sued Airbnb and not, say, PayPal or Visa: it
9 is seeking to impose liability for listings, not for payment processing. As the FAC
10 alleges, Aimco has demanded that Airbnb remov[e] listings. (FAC 48). When
11 Airbnb declined to do so, Aimco filed suit, alleging in its complaint that it was the
12 listings that appeared on Airbnbs platform that were in violation of Aimcos lease
13 agreement. (Compl. 28 (emphasis added).) Only when it became aware of the CDA
14 did Aimco opportunistically amend its complaint to shift its focus to payment and
15 transaction processingand even now, Aimco has served extensive discovery
16 requests focusing on the listings themselves, as well as the content, screening, and
17 removal of listings. (See Blavin Decl., Ex. B, at 8, 10 (RFP 12: documents relating to
18 any analysis of Illegal Listings or Airbnbs potential strategies for limiting,
19 controlling, or terminating, Illegal Listings; RFP 15: documents relating to
20 request[s] that Airbnb remove or terminate Listings; RFP 27: documents relating to
21 screening, reviewing, verifying, or removing Listings).)
22 While Aimco attempts to artfully plead[] to avoid direct reference to Airbnbs
23 publishing conduct, the CDA bars its claims as they implicitly require recourse to
24 that content to establish liability. Cohen v. Facebook, Inc., ___ F. Supp. 3d ___,
25 2017 WL 2192621, at *11 (E.D.N.Y. May 18, 2017). Aimco does not dispute that
26 Airbnb would need to review and monitor listings to determine if they were in
27 violation of Aimcos lease terms. See, e.g., Green v. Am. Online, 318 F.3d 465, 471
28 (3d Cir. 2003) (decisions relating to monitoring of content are quintessentially
-24-
1 related to a publishers role). The Court should decline to open the door to such
2 artful skirting of the CDAs safe harbor provision. Kimzey, 836 F.3d at 1266.
3 Second, San Francisco is wrong and should not be followed. The San
4 Francisco court failed to mentionmuch less distinguishthe cases that have
5 uniformly held the CDA provides immunity to websites for claims arising from online
6 transactions (Mot. 2324; supra at 2123). Indeed, the district court acknowledged
7 that StubHub and eBay and other sites that facilitate commercial transactions
8 have all, without exception, been found to be covered by Section 230 (Blavin Decl.,
9 Ex. C, at 40:1115), but ignored this case law. The court also did not explain how its
10 ruling could be squared with the CDAs purpose of promoting e-commerce. It
11 apparently did not consider that its ruling would undermine CDA immunity for
12 thousands of websites that facilitate and provide services for third-party transactions.
13 That risk is greatly magnified in the context of private lawsuits like this one: Aimcos
14 theory would hold online marketplaces, large and small, responsible for investigating
15 every complaint they receive about allegedly tortious third-party goods or services
16 advertised on their sites. This would create exactly the kind of notice-based liability
17 Congress chose to preclude in enacting the CDA. Zeran, 129 F.3d at 333.
18 III. CONCLUSION
19 The Court should dismiss the First Amended Complaint with prejudice.
20
Respectfully submitted,
21
DATED: October 18, 2017 MUNGER, TOLLES & OLSON LLP
22 BRAD D. BRIAN
23 JONATHAN H. BLAVIN
HAILYN J. CHEN
24
25
By: /s/ Jonathan H. Blavin
26 Attorneys for Defendants AIRBNB, INC. and
27 AIRBNB PAYMENTS, INC.
28
-25-

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Case 2:17-cv-04885-DMG-AS Document 24 Filed 10/18/17 Page 1 of 34 Page ID #:1265

1 BRAD D. BRIAN (State Bar No. 79001)

14 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

22 AIRBNB INC. and AIRBNB Judge: Hon. Dolly M. Gee

DEFENDANTS REPLY ISO MOTION TO DISMISS FIRST AMENDED COMPLAINT

6 Aliya Med. Fin., LLC v. Nickell,

27 Kimzey v. Yelp! Inc.,

27 Hill v. StubHub, Inc.,

27 Orange Cty. Water Dist. v. Alcoa Glob. Fasteners, Inc.,

1 2. Aimco Fails to Allege Proximate Causation

1 claim on pleadings where complaint alleged party abandoned contract prior to

1 4. Aimco Does Not Allege Independently Wrongful Acts

1 B. Aimco Fails To State a Claim for Violation of the UCL

1 short-term renters or Plaintiffs landlord. If tenants of an apartment building lack

1 endangered by Airbnbs conduct. (Opp. 20.) Foreseeability is insufficient here,

1 the nuisance activity specifically. Gamache, 2017 WL 3431651, at *2.

1 Aimcos argument in opposition to CDA immunity hinges entirely on a single

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